Olsen, In re
Decision Date | 03 January 1986 |
Docket Number | No. F006035,F006035 |
Citation | 176 Cal.App.3d 386,221 Cal.Rptr. 772 |
Court | California Court of Appeals Court of Appeals |
Parties | In re Thomas OLSEN On Habeas Corpus. |
Glenn M. Kottcamp, Fresno, for appellant.
John K. Van de Kamp, Atty. Gen., James T. McNally, Supervising Deputy Atty. Gen., Sacramento, for respondent.
Petitioner, an indigent, pleaded guilty to battery (Pen.Code, § 242) in the Hanford Justice Court. He was fined $850 and sentenced to three years' probation and thirty days in the county jail, less credit for time served. Thereafter, acting without an attorney, petitioner filed a notice of appeal to the Appellate Department of the Kings County Superior Court. Attorney Joe L. Norcross was appointed to represent petitioner in the appeal.
Mr. Norcross filed a proposed statement on appeal on behalf of petitioner. The proposed statement provided:
"The grounds that will be raised on appeal include but are not limited to, A) That trial counsel for the defendant did not inform the defendant of the true nature of the agreed plea bargin [sic ], and B) That the Court did not follow the agreed upon sentence and that the sentence is crule [sic ] and unusual punishment."
The Appellate Department of the Kings County Superior Court notified petitioner that the record on appeal had been lodged in that court. It also set the date for filing of appellant's opening brief. However, neither a settled statement nor an appellant's opening brief was filed within the allotted time, and the Kings County District Attorney's Office moved to dismiss the appeal. Six days later, Attorney Norcross also moved to dismiss the appeal, stating:
Thereafter, the appellate department dismissed petitioner's appeal with the following language:
A remittitur was then filed.
Petitioner has made several unsuccessful attempts to reinstate his appeal, including two habeas corpus petitions to this court, all of which were denied. Petitioner then filed a petition for writ of habeas corpus in the California Supreme Court. The Supreme Court issued to the Sheriff of Kings County an order to show cause before this court "why the remittitur should not be recalled ... and his appeal be reinstated." After receipt of a copy of the order to show cause, this court requested briefing on whether petitioner had a right to have his appeal reinstated absent a showing of an arguable issue on which to appeal.
Should petitioner's appeal be reinstated without showing of an arguable issue on which to appeal?
This question must be answered in the affirmative.
In Anders v. California (1967) 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493, the United States Supreme Court established minimum standards for appointed appellate counsel. Appellate counsel must
(Id., at p. 744, 87 S.Ct. at 1400.)
The California Supreme Court adopted the Anders approach in People v. Feggans (1967) 67 Cal.2d 444, 62 Cal.Rptr. 419, 432 P.2d 21:
(People v. Feggans, supra, 67 Cal.2d at p. 447, 62 Cal.Rptr. 419, 432 P.2d 21.)
Finally, in People v. Wende (1979) 25 Cal.3d 436, 158 Cal.Rptr. 839, 600 P.2d 1071, the Supreme Court expanded the duties of a reviewing court in handling a case which appointed counsel deems to be meritless. Wende interpreted Anders and Feggans as requiring that the appellate court (Id., at pp. 441-442, 158 Cal.Rptr. 839, 600 P.2d 1071.)
The handling of petitioner's appeal obviously fails to meet the Wende requirements. It also falls short of the procedure condemned in Anders. The question is whether there is any reason the Wende procedure should not apply to appeals from misdemeanor convictions. We perceive none.
The right to appeal from inferior courts is granted by statute (Pen.Code, § 1466, subd. (b)(1)). The statute provides that the defendant may appeal "From a final judgment of conviction." It further provides:
The right to appeal from an inferior court also exists after a defendant enters a guilty plea, although the appealable issues perhaps may be restricted to those going to the legality of the proceedings, such as constitutional or jurisdictional error (Avila v. Municipal Court (1983) 148 Cal.App.3d 807, 812-813, 196 Cal.Rptr. 286; but see People v. Woods (1978) 84 Cal.App.3d 149, 154, 148 Cal.Rptr. 312, holding that Pen.Code, § 1237.5 does not apply to appeals from inferior courts) or matters arising after the entry of the plea such as an alleged violation of a plea bargain. (People v. Kaanehe (1977) 19 Cal.3d 1, 8, 136 Cal.Rptr. 409, 559 P.2d 1028.)
The issues arising from appeals of misdemeanor convictions often are procedurally and substantively complex, and their resolution has serious consequences to the defendant. This brings into focus the concerns expressed in Evitts v. Lucey, 469 U.S. 387, 105 S.Ct. 830, 836, 83 L.Ed.2d 821 (1985):
None of the decisions pertaining to a defendant's 14th Amendment due process right to effective appellate counsel have made any distinction between...
To continue reading
Request your trial-
Gardner v. Appellate Div. of the Superior Court
...that—like a trial—is governed by intricate rules that to a layperson would be hopelessly forbidding.’ " ( In re Olsen (1986) 176 Cal.App.3d 386, 390, 221 Cal.Rptr. 772, quoting Evitts v. Lucey (1985) 469 U.S. 387, 396, 105 S.Ct. 830, 83 L.Ed.2d 821.) These rules are forbidding for any laype......
-
People v. Egbert
...(§ 1237.5, subd. (a); People v. DeVaughn (1977) 18 Cal.3d 889, 896, 135 Cal.Rptr. 786, 558 P.2d 872; In re Olsen (1986) 176 Cal.App.3d 386, 390, 221 Cal.Rptr. 772; People v. Singer (1976) 128 Cal.Rptr. 920, 56 Cal.App.3d Supp. 1, In essence, a guilty plea "concedes that the prosecution poss......
-
Sade C., In re
...3, post.Generally, the Courts of Appeal have confined Anders and Wende to criminal appeals. (See, e.g., In re Olsen (1986) 176 Cal.App.3d 386, 389-392, 221 Cal.Rptr. 772 [holding that Anders and Wende are applicable to criminal appeals of misdemeanors as well as felonies].) They have genera......
-
People v. Smith
...was some inconsistency: "Generally, the Courts of Appeal have confined Anders and Wende to criminal appeals. (See, e.g., In re Olsen (1986) 176 Cal.App.3d 386, 389-392 [holding that Anders and Wende are applicable to criminal appeals of misdemeanors as well as felonies].) They have generall......